72 Pa. Super. 235 | Pa. Super. Ct. | 1919
Opinion by
This is a second appeal in this litigation from judgments entered by the court below, our decision in the former appeal is reported in 67 Pa. Superior Ct. 255. The facts are fully stated in the former opinion and it is not necessary here to repeat them. We there held that the sum which the parties had in their contract provided should be paid as a penalty for a breach of the contract, was a penalty and not liquidated damages. The case went back to the court below and was tried by a jury. The plaintiffs at the trial moved to amend their statement by striking out the eleventh paragraph thereof, which averred their right to recover the sum of one thousand dollars as liquidated damages, and to add to paragraph ten of the statement the following words: “As a result of said violations they suffered damage in the sum of thirty-five hundred dollars, to recover which this suit is brought.” This amendment did not introduce a new cause of action, it was merely another way of stating that they were entitled to the damages lawfully recoverable for the breaches of the contract averred in the statement originally filed. When a plaintiff in his statement avers a good cause of action but makes a mistake as to the measure of damages to which he is entitled, it is always proper to permit him to amend by stating the proper measure. When a cause has been tried upon its merits, the testimony directed to the true issue and proper in
The pleadings in this case established all the facts essential to a good cause of action in the plaintiffs. The plaintiffs had agreed to sell to the defendant at fixed prices, during a definite period, certain brands of cigars manufactured by them, which had a well established reputation in the trade and had covenanted that the defendant should have the exclusive right to sell such brands of cigars in the States of Delaware and New Jtersey and in many of the most populous counties, including Philadelphia, in the State of Pennsylvania. The defendant had in the written agreement covenanted to make diligent efforts to sell said brands of cigars and not to sell any other ten cent cigars in the territory. He did for a few months make efforts to sell such cigars and did a large amount of business. Within six months after entering into the contract, and while it was still in force, the defendant began to operate a cigar factory of his own and manufactured cigars of his own brand similar to-, in imitation and to the displacement of the plaintiffs’ products. He refused orders from his customers for plaintiffs’ goods, of which he had the exclusive control, and abandoned the sale of said goods, substituting those of his own manufacture. The sale of plaintiffs’ goods in the territory controlled by the defendant practically ceased. The plaintiffs about three months later discovered the fraud which the defendant was practicing, notified him that because of his misconduct they would no longer be bound by the contract and that they would hold him for damages. They subsequently brought this action averring the right to recover the damages which they had suffered during the period that the defendant had ceased to comply with his contract down until the time the plaintiffs had notified him of their refusal to proceed further under it, that is, during a period of about three months. The damage which the plaintiffs suffered was, of course, loss of profits. The contention of the learned counsel
The judgment is affirmed.